Ghose and Stephen, JJ.
1. The petitioners before us have been convicted of offences under Sections 147, 353, read with Section 149 and Section 379, read with Section 149, Indian Penal Code, and(upon an application made by them to this Court, a rule was granted to show cause why the conviction and sentences should not be set aside upon the grounds--first, that the warrant under which the Commissioner appointed by the Civil Court is said to have acted did not authorize him to deliver possession of the property to the decree-holder and, second, that, upon the date that possession was attempted to be delivered, the warrant was a time expired warrant.
2. So far as the first-mentioned ground is concerned, we are of opinion, after hearing learned Counsel on both sides, that it must fail, because there is distinct evidence upon this record--evidence that has been accepted by the Sessions Judge on appeal--that, in addition to the parwana issued by the Civil Court for 'the ascertainment of mesne profits, there was another parwana for delivery of possession of the property decreed. That parwana, however, according to the case for the prosecution, was snatched away from the hands of the Commissioner by some one or other of the accused, and therefore it could not be produced at the trial.
3. As regards the other ground upon which the rule was granted, it appears upon the evidence that, although a warrant for delivery of possession, as already mentioned, was issued to one Nobin Chandra, yet the date mentioned in it as the date for hearing; of the case in Court was the 30th March. Apparently there was some mistake in this connection, The original parwana that was issued was parwana addressed to one Jotindra Mohun. That was recalled, but, by some mistake or other, the date which was inserted in that document on the margin thereof, viz., the 30th; March 1908, was not altered, the date being left as it stood upon the original parwanas. Under Section 251, Code of Civil Procedure, it is the duty of the Court to specify in a warrant for execution of decree, whether it be a decree for delivery of possession or otherwise, the day on or before which the warrant must be executed, The 30th March 1903, which was specified in the margin of the document as the date of the hearing; of the case, seems to have been understood by all parties concerned as the date within which the warrant was to be executed. It is no doubt true, as has been pointed out by Mr. Sinha, that there was an order entered in the order-sheet under which the date of hearing 4 was subsequently fixed at a later date. It does not, however, appear that a notice of such date was given to the officer in charge of the execution of the warrant and, as we have already indicated the 30th March 1903, the date specified in the margin, seems to have been understood by all parties concerned as the date of contemplated by Section 351, Code of Civil Procedure. The occurrence in question took place on the 22nd April, that is to say, on a day subsequent to the day by which the warrant was to have been executed; and it is obvious that the Commissioner had no authority, if the view of the facts that we have already mentioned be correct, to go upon the land in the possession of the party, who resisted the execution and to attempt to deliver possession of it to the decree-holder. If he had no such authority, it seems to us that the petitioners could not be convicted of the offences with which they were charged. At one time, however, we were disposed to think that, even if the conviction under Sections 147 and 143 could not stand, yet the conviction under Section 379 could well stand, it being evidenced by one or two witnesses for the prosecution that some one or other of the accused took away some of the papers that the Commissioner had in his hands. But looking at the judgment of the Sessions Judge in appeal, it appears that, although the Magistrate convicted some of the accused for the substantive offence of theft under Section 879, Indian Penal Code, yet the Sessions Judge ruled otherwise; for he convicted all the accused persons of offences under Sections 147, 353 read with Sections 149 and 379 read with Section 149, Indian Penal Code. There could be, we need hardly say, no conviction under any of the two latter Sections, unless there was an unlawful assembly within the meaning of Section 143. For these reasons we think that the conviction and sentences in this case must be set aside. We order accordingly.